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ICC’s Failure to Protect its Officials

Since 7 June 2012, four officials of the International Criminal Court’s (ICC) Office of Public Counsel for Defence (OPCD), including Australian lawyer Melinda Taylor, have been detained in Libya.

I had the pleasure of meeting Melinda Taylor last year during the course of my LL.M. and she gave me some useful advice for my thesis. I have always admired her competence, professionalism and commitment, therefore I was shocked to say the least when I heard the news of her detention in Zintan, near Tripoli.

She, and the other three ICC officials, have been accused of trying to pass on “dangerous” documents to Saif Al-Islam Gaddafi. Gaddafi is son of Muammar Gaffafi and is facing ICC charges of crimes against humanity.

Under the 1998 Rome Statute and in compliance with the principles of fair trial and respect of the rule of law, each Defendant at the ICC is entitled to a number of rights deriving from his/her right of defence:

– right to appoint a counsel of his choice

– right to have adequate time and facilities to prepare his defence

– right to communicate freely and in confidence with his lawyers

The latter includes the right to freely discuss and exchange documents with his lawyers.

This clearly shows that the detention of the ICC officials is unjustified and a violation of international law. Not only is there no legal basis for their detention, but their right to international immunity has been violated.

This situation highlights the hot topic of who should bring to justice the accused former regime figures: whether it should be a right of the newly established Libyan authority or whether it should be left to the International Criminal Court. It appears that, on top of the UN mandate deriving from the UN Security Council Resolutions 1970 and 1973 allowing the ICC to open the Libyan case, under Article 17 of the Rome Statute (principle of complementarity), Libya should be considered “unable” to try individuals such as Saif Gaddafi for the simple fact that the current Libyan authorities cannot guarantee impartiality and fairness of trial.

This is hotly disputed and their conduct in respect of ICC officials clearly shows that they are prepared to overstep international law in order to affirm their independence and sovereignty. It remains unclear how they expect to claim legitimacy and credibility on the international scene whilst violating international law and not complying with the rights of the accused to a fair trial. Furthermore, this situation seems to reveal that the ICC had not made arrangements suitable to secure the safety of its officials prior to sending them to Libya and, ultimately, ensure their protection.